Rape trial: Will it stay here?

Legal experts say change of venue motion may be too hard to prove

January 13, 2013

STEUBENVILLE - Legal experts believe a change of venue motion filed Friday in the rape case involving two Steubenville High School student-athletes will be hard to prove.

Trent Mays, 16, of Bloomingdale and Ma'lik Richmond, 16, of Steubenville have been charged with rape. Mays also has been charged with illegal use of a minor in nudity-oriented material. They are scheduled to go on trial beginning Feb. 13 before visiting juvenile Judge Tom Lipps. There will be no jury. Lipps will make the decision of guilt or innocence. Attorneys for the defendants have denied the charges in court.

Witnesses said the incident occurred on the night of Aug. 11 into the morning of Aug. 12. The parents of a 16-year-old girl came to City Police on Aug. 14 to make a report.

Article Photos

COURTROOM — Whether this juvenile courtroom in the Jefferson County Justice Center will be where a rape trial involving two Steubenville High School student-athletes will take place has been questioned by defense attorneys in the case. Defense attorney Walter Madison is seeking a change of venue because potential witnesses have stopped talking to him about the case. -- Mark Law

Lipps said there was eyewitness testimony that sexual conduct occurred. The judge said there was probable cause the victim was drunk and impaired and the juveniles charged knew it. He later ruled that the case would remain in juvenile court, after the prosecution requested to have the cases transferred to adult court

Attorney Walter Madison, who represents Richmond, said he believes it is best for the integrity of the proceedings to be in a different venue. Madison on Friday filed motions that seek a change of venue, ask that the upcoming trial be closed to the public and media and request a continuance of the trial.

"Too much is going on in the county," he said, referring to cyber threats, emails that shut down the police chief's computer and schools being placed on lockdown.

Article PDFs

"No one wants to voluntarily make themselves a victim of that," Madison said in reference to witnesses he said have stopped talking to him about the case.

He said his claims of witness intimidation are real.

"People don't want to talk to me anymore," he said.

Madison said he always encourages people to express their opinions, even if those opinions include the outrage that surrounds this particular case.

"I don't have a problem with a person exercising their First Amendment rights, regardless of what they say," he said.

But, Madison said social media statements have affected the case.

Mays' attorney, Adam Nemann of Columbus, did not respond to a request for an interview. Nemann has been quoted in media accounts of the case as saying he is concerned that the postings on social media may result in potential witnesses being reluctant to testify and that they may invoke their Fifth Amendment right against self-incrimination in criminal cases.

Three fellow Steubenville High School students testified about the incident during a preliminary hearing in October. Lipps during the hearing advised the teens that they had a right not to incriminate themselves through testimony. Two of the teens had attorneys present when they testified. The Ohio attorney general's office has since said immunity hasn't been offered to the students concerning their testimony.

Jefferson County Prosecutor Jane Hanlin has stepped aside in the case, saying she knows individuals involved in the investigation. Hanlin asked the attorney general's office to take over the prosecution. Brian Deckert and Marianne Hemmeter of the attorney general's office have been assigned to the case.

City Police Chief William McCafferty said the police department hasn't been informed of any threats or intimidation against the people who have already testified in the case. He said he doesn't know who will testify in the upcoming trial.

A juvenile court official reported the court will be taking special precautions so there is no risk to anyone coming into the Jefferson County Justice Center during the trial.

A Pittsburgh law professor says social media is adding a new twist to the issue of pretrial publicity.

The Steubenville rape case has garnered extensive posts in blogs, on Facebook and on Twitter.

Wes Oliver, an associate professor in the Duquesne University School of Law, said social media has the ability to quickly "whip up a frenzy," especially on the local level.

Oliver is the director of the university's criminal justice program, and served as a legal analyst for NBC News during coverage of the criminal proceedings against Jerry Sandusky, a former coach at Penn State.

Oliver noted there has always been a mob mentality in society. He said social media allows the mob message to travel much more quickly than it once did.

Oliver said most people talk about an issue in places like the grocery store and are considered moderate talkers.

He said those people don't make social media posts of "let's see what the trial results are."

"Social media highlights the most extreme voices on both sides (of an issue). "Only the most extreme voices are heard on social media."

Oliver said the change of venue request is hard to prove, especially when Lipps, as the trier of fact, will make the decision of guilt or innocence. But the change of venue motion due to potential witness intimidation is unique. He said there may not be an advantage to moving the trial to another county because witness intimidation can occur on the local level prior to the witnesses traveling to another county for the trial.

As far as the impact of social media on jury pools in other criminal cases, Oliver said prospective jurors always claim they can be fair and set aside prior knowledge in the case. He said pretrial publicity is always in the back of a juror's mind. He said he has greater trust in a person who claims he or she can't set aside the pretrial publicity than the prospective jurors who say otherwise.

Oliver said comments on a pending case go beyond social media and into the national media and the 24-hour news channels. He noted Nancy Grace on CNN's Headline News and her "extreme" views on pending criminal cases. He said members of the national media are very polarized and are "pumping thoughts into people's minds."

"Courts have to come up with a way to try to figure out media coverage, social media or otherwise, and the impact on the jury pool. They may not want to know the answer."

Oliver said social media has the biggest impact on local cases.

"There is no filter in the social media. That is the information the jurors are going to take into the box."

He said social media is unlike professional journalism where reporters are required to check facts and report in an objective manner.

"There is no real sense of ethics," Oliver said about the social media.

David Harris, a professor in the University of Pittsburgh School of Law, said it is unusual to request a change of venue in a case where the judge is the trier of fact. He said it is assumed a judge can set aside matters outside the case and fairly preside.

"We are usually not concerned that judges can set aside these things. That is a standard in the law," Harris said.

Harris, who teaches criminal justice policy and criminal procedure at the Pitt law school, said the defense attorneys in this case will have a hard time getting a change of venue based on alleged witness intimidation. He said even if the case is moved, the trial will be covered by the media and reported back to Steubenville and everyone will know what was said.

"I'm not sure moving the case to another county will change that," he said.

Harris said social media is having an impact on the judicial system. He said the case involving the Steubenville High School students exploded in the social media because of a blogger who pushed the belief that others were involved and haven't been charged.

He said the blogger put pressure on police and prosecutors, saying that more needs to be done.

But he said such pressure can go too far and convince people there is a cover-up.

Harris said the police and prosecutors are responsible for gathering evidence and not looking at innuendo.

"Because of that, they have to be more cautious than some blogger. They have to do a real investigation."

He said some may look at the police investigation as "soft-pedaling," but there may not be enough evidence to support the filing of other charges.

"What the facts show and what may be in someone else's mind may not be the same thing."

He said the power of social media was put on display when the hacktivist group Anonymous became involved in the case and threatened to release information from private computers unless its request for action was answered.

"They have huge power and a huge megaphone to get the message out there. To get that message out before a trial strikes me as the end-justifies-the-means thinking. This will happen in other cases. This is not the last time we will see it."

Harris said the video released by Anonymous that shows Michael Nodianos of Steubenville commenting on the alleged rape also demonstrates how social media has an impact on criminal investigations. He said people post videos, pictures and comments on Facebook, YouTube and other places on the "universal billboard" called the Internet without realizing that information can be used in court.